Traffic Law - Dangerous Driving in Queensland
Emma Fogerty - Toowoomba Lawyer

16 February 2019

Emma is an Accredited Specialist in Criminal Law (Qld). As an experienced and widely respected criminal defence lawyer in Queensland, Emma has a strong professional reputation for her ethical, thorough and skilled representation of clients in complex criminal cases, including for charges of dangerous driving causing death.

Dangerous Operation of a Motor Vehicle

For both prosecutors and defence lawyers, the law in Queensland in relation to the offence dangerous operation of a motor vehicle, commonly known as ‘dangerous driving’, has some complexity. Today I am going to provide an overview of the law, the defences that apply and one thing that can I feel is often overlooked for cases of this kind – the importance of expert evidence.

While I hope you find this information helpful, it is general in nature and should never be used as a substitute for legal advice. If you want to get specific advice, our firm offers a free case assessment to determine if we can help in your case.

Legal Definition

Starting with the basic offence itself, the law requires prosecutors to prove an objective standard of ‘dangerousness’ by reference to a subjective set of circumstances. That carries challenges. In plain English, it means a general standard of what is considered ‘dangerous’ is applied to the particular circumstances of a case. For that reason, there is a wide range of examples of driving that fall into the category of ‘dangerous’.

For the offence to be proved, the prosecution evidence must establish the following:-

  1. that you operated, or in any way interfered with the operation of, a motor vehicle;

  2. In a place, (for example a highway);

  3. and that you did so dangerously.

The word “dangerously” is given its ordinary meaning, which is effectively “fraught with or causing danger; involving risk; perilous; hazardous; unsafe”. In the context of driving, it refers to a vehicle being operated “at a speed or in a way that is dangerous to the public having regard to all the circumstances”.

So what are the ‘circumstances’ that are taken into account? While the simple answer is ‘all’ of them, the crucial factors are spelt out by the law in Queensland and include:-

  • the nature, condition and use of the place; and

  • the nature and condition of the vehicle; and

  • the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and

  • the concentration of alcohol in the driver’s body; and

  • the presence of any other substance in the driver’s body.

It is not really to the point that the driver thinks they were driving carefully.  It does not matter whether a driver is deliberately reckless, careless, momentarily inattentive or even doing their incompetent best, each may be considered to be dangerous depending on the circumstances of the case.  Many people do not realise that momentary lapses of attention, if they result in danger to the public, can amount to the offence of dangerous operation of a motor vehicle, notwithstanding that they are brief or momentary.

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Consequences – Penalties & Licence Disqualifications

There are many misconceptions about dangerous driving offences. One of the most common is that although may involve the use of a car, it is not a traffic offence.

Dangerous operation of a motor vehicle is an offence under s328A of the Criminal Code (Qld).  It carries with it a maximum penalty of 200 penalty units or 3 years imprisonment.  Therefore, if a person is convicted of this offence in Queensland, it will appear on their criminal history.

This is also one area of criminal law where mandatory sentencing has applied for a long time. Section 328A makes clear that if you have to previous convictions for drink driving on your traffic history and you then are convicted of dangerous operation of a motor vehicle, the court must impose a sentence of imprisonment.

In addition to a penalty that may involve imprisonment, if a person is convicted (by either pleading guilty or being found guilty) of an offence of dangerous operation of a motor vehicle, the court must impose a minimum driver licence disqualification of 6 months.  You cannot obtain a work licence when charged with an offence of this kind. In other words, a disqualification from driving is just that; an absolute disqualification from driving under any circumstances whatsoever during the period of the disqualification.

The penalties imposed for this offence are serious and often involve terms of imprisonment. If you are charged with this kind of offence then, depending on the circumstances of your case, you could also expose yourself to costly insurance issues as well as personal injuries compensation claims.

‘Circumstances of Aggravation’

In Queensland, criminal offences often include circumstances that, if proven, increases the maximum penalty that may be imposed upon conviction. There are three different circumstances of aggravation that can increase the maximum penalty for an offence of dangerous operation of a motor vehicle.  If any of the below circumstances apply, then the maximum penalty is 400 penalty units or 5 years imprisonment:

  1. Adversely affected by an intoxicating substance: The law provides that if a person has a blood alcohol concentration equal to or exceeding .150 at the time they dangerously operated a motor vehicle, it is deemed conclusive evidence that the person was adversely affected by liquor at the relevant time.

  2. Excessively speeding or taking part in an unlawful race or unlawful speed trial

  3. Has previously been convicted of the offence

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Dangerous Driving Causing Death or Grievous Bodily Harm (s. 328(4) Criminal Code)

A charge of dangerous operation of a motor vehicle causing death or grievous bodily harm is a very serious offence.  This offence is strictly indictable, which means it can only be heard in a District Court or Supreme Court.  This charge applies if a person is killed or seriously injured as a result of the dangerous operation or interference of the motor vehicle.

The maximum penalty for this offence is 10 years imprisonment.

However, the maximum penalty increases to 14 years imprisonment if any of the following circumstances of aggravation apply:-

  • The driver was adversely affected by an intoxicating substance;

  • excessively speeding;

  • taking part in an unlawful race or unlawful speed trial; or,

  • the offender leaves the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrives.

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Defences

I have been involved in a number of jury trials in Queensland where we have argued that the driving does not amount to ‘dangerousness’, arguments which have been successful and resulted in acquittals.

Always, the application of particular defences will depend on the facts and circumstances of each individual case. There can be mechanical explanations for the driving, or it may have been an ‘extraordinary emergency’ or an ‘unwilled act’. An act or omission that occurs independently of the exercise of free will may apply where a person may have lost control of the vehicle due to a medical issue or suddenly fall asleep without warning.

In the abstract, it is difficult to explain how certain defences may apply because the charge generally arises in such specific circumstances. It is the reason why anybody facing such a charge should ensure they get legal advice from an experienced criminal lawyer who understands the importance of attention to detail in cases of this kind.

Expert Evidence

The use of opinion evidence is not ordinarily permitted in a court.  An exception to that rule is with respect to expert opinion, or what is called ‘expert evidence’.

In cases involving serious accidents, persons involved in the accident may have limited memory of what occurred immediately before and after the accident.  This is often due to the fact that accidents can occur within a very short space of time or because those involved may have suffered injuries.

Establishing the cause of the accident or simply what occurred often requires the use of forensic crash investigators, scientists, engineers and technical equipment.

At Anderson Fredericks Turner, we will often engage expert witnesses to assist our clients in presenting their strongest defence. The experts we engage provide reports and give evidence on critical forensic features including but not limited to:-

  • accident hypothesis;

  • tyre markings on the road;

  • tyre scuff marks;

  • angles of road markings;

  • road trajectories;

  • direction calculations, based on vehicle positioning, road markings and vehicle debris; and,

  • distance and speed calculations.

We will often engage our own expert to interpret the conclusions or findings of police investigators to ensure that every aspect of our clients’ defence is explored. Without contradicting the evidence of police appointed experts, people may face a disadvantage in presenting their best defence.

Summary

From the general overview I have provided I hope it has given you some insight into the law and some of its complexities. If you have been involved in a major accident, are under investigation or have charged with this offence, it is essential you obtain legal advice. The purpose of outlining this information is to provide a useful starting point for people who may be seeking a better understanding of the laws that exist and operate in Queensland.

If you are seeking specific advice or representation regarding a charge of driving without due care and attention, or any other charge for that matter, you are welcome to contact our team for a free case assessment.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving dangerous operation of a motor vehicle (dangerous driving). Although available for all courts throughout Queensland, our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.

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